Bringing the Courts Back In: Interbranch Perspectives on the Role of Courts in American Politics and Policy Making

Abstract

▪ Abstract  Understanding the role of law and courts in American politics and policy making is inherently complex. The dominant response to this problem has been to specialize narrowly in Supreme Court decision making. The problem is that American politics and policy making are inherently interactive and thus cannot be easily parsed into component parts. Consistent with this observation, a growing literature assumes that courts must be studied from an interbranch perspective, which holds that American politics and policy making emanate from interaction among overlapping and diversely representative forums. The result is studies that analyze how law and courts fit into broader political and policy-making processes and reveal the political significance of seemingly technical legal matters. By redescribing courts and judicial decision making in political terms, interbranch analysis not only enriches the study of judicial behavior but also promises to bring law and courts back into the mainstream of the study of American politics and public administration—where they belong. [N]o skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces—the legislative, executive, and judiciary. … Questions daily occur in the course of practice which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science. James Madison, Federalist Paper No. 37 (1788 [1987], p. 244)